Super-Copyright: Contracts, Preemption, and the Structure of Copyright Policymaking

66 Pages Posted: 28 Mar 2007 Last revised: 22 Mar 2012

See all articles by Viva Moffat

Viva Moffat

University of Denver Sturm College of Law

Abstract

Adhesion contracts, many of them now in clickwrap or browsewrap form, proliferate and govern nearly every commercial transaction and most of the ways in which the modern consumer interacts with the world. Virtually every one of these contracts contains a limitation on copyright's fair use doctrine. These widespread and non-negotiated restrictions on fair use ("super-copyright" provisions) conflict with and stand as an obstacle to the achievement of federal purposes, but most courts and many commentators have rejected preemption as the appropriate doctrinal tool for addressing challenges to these provisions. This Article argues that enforcement of super-copyright provisions ought to be preempted. Preemption is the doctrine designed to address the interaction between state law and federal policy; other doctrinal approaches, such as state contract defenses and formation doctrines, do not do the work necessary to mediate between federal and state interests. In addition, preemption in this context is a way of acknowledging and emphasizing the proper institutional structure of copyright policymaking. By permitting copyright owners to contract around fair use, courts have improperly abdicated their fair use policymaking role while at the same time arrogating to themselves policymaking regarding contracting around fair use, which is a task that should be placed at Congress' door.

Suggested Citation

Moffat, Viva, Super-Copyright: Contracts, Preemption, and the Structure of Copyright Policymaking. U.C. Davis Law Review, Vol. 41, No. 1, 2007; University Denver Legal Studies Research Paper No. 07-21. Available at SSRN: https://ssrn.com/abstract=972218

Viva Moffat (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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